Almost every disability insurance policy issued today requires that you are under the regular care of a doctor in order to be eligible for total disability benefits. However, for permanent medical conditions, sometimes additional treatment just isn’t necessary. For instance, if you undergo a spinal fusion, no amount of treatment is ever going to restore you to exactly how you were before. In addition, people with disabilities are often in a financially vulnerable position, and paying for unnecessary medical treatment can cause further strain.

The people that write and sell disability insurance policies understand this, so they often include an additional benefit in the policies: a waiver of the medical care requirement when treatment is no longer needed. This reasonable provision helps sell policies.

Unfortunately, once a claim is made, the companies are often unwilling to actually provide the benefit. What many insureds may not realize is that the language of these waiver provisions is designed to give the company wide latitude in determining whether or not to provide the benefit.

For example, here is a typical waiver of medical care provision for individual disability insurance policies issued by Berkshire Life Insurance Company of America (subsidiary of The Guardian Life Insurance Company of America):

We will waive the medical care requirement during any claim under this policy upon reasonable proof that your sickness or injury no longer requires the regular care of a physician under prevailing medical standards.

This provision states that Berkshire won’t waive the medical care requirement unless you provide “reasonable proof” that your condition doesn’t require regular care. What the provision doesn’t state is what reasonable means, and who determines what is or is not reasonable. The company, of course, will argue that it gets to decide what is reasonable. For insureds, this usually means that Berkshire won’t provide the waiver, because the insured can never offer proof good enough to satisfy the company.

Here is another typical example, this one from a Unum individual disability policy (Unum’s subsidiaries include Paul Revere Life Insurance Company):

We will waive this requirement if We receive written proof acceptable to Us that further Physician’s Care would be of no benefit to You.

This policy is explicit about who decides what proof is adequate: Unum does. Just as with Berkshire, insureds are likely to find that proof “acceptable to” Unum is hard to come by.

The typical Massachusetts Mutual Life Insurance Company (MassMutual) provision is essentially the same as Unum’s:

We will waive this requirement if We receive written proof acceptable to Us that further Doctor’s Care is no longer of benefit to the Insured.

Again, the provision is written to give maximum discretion to the company, and the company is likely to decline to provide the waiver.

Why don’t insurance companies want to offer this benefit? For one, the claims adjusters often think that not seeing a doctor for monthly treatment is a surefire sign of malingering—i.e., faking or exaggerating your condition. If they can make sure you are seeing a doctor every month, they are more satisfied that you are actually disabled. Plus, in the insurance company’s mind, almost every condition is fixable if you get enough treatment. The insurer wants you to keep getting treatment so that you will get better—and the company can stop paying you.

Second, the claims department wants you to see a doctor every month so that you will keep sending in Attending Physician’s Statements, and so that they can keep ordering new medical records. The more statements and records there are about you, the more chances there are for the claims department to find something in those documents that suggests you can go back to your occupation.

For these reasons, we have never had Unum, Berkshire/Guardian, or MassMutual ever volunteer to waive the medical care requirement. In order to get the waiver, the insured (or his/her lawyer) will have to affirmatively demand it. Though we have had success with obtaining the waiver for our clients, getting the “reasonable” or “acceptable” proof the company requires can be very difficult.

If you think you should be receiving a waiver of the medical care requirement but you aren’t, talk to your attorney. He or she can look at the policy and your medical records and figure out a) whether you may actually be entitled to the waiver, and b) what kind of proof you can provide the disability insurance company so that it will agree.

Members of our firm are admitted to practice in Arizona, Florida, Kansas and Missouri. Our Arizona practice focuses on the cities of Phoenix, Scottsdale, Tucson, Flagstaff and Yuma. In addition, our attorneys have been retained pro hac vice in various state and federal courts, including courts in California, New Mexico, Nevada, Texas, New York, Maryland and Alaska, among others. We provide disability income claim advice and assistance with filing disability claims, including completion of disability claim forms and representation in disability insurance litigation.